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PETITIONER: MITHLESH KUMARI AND ANR.

       Vs.

RESPONDENT: FATEH BAHADUR SINGH AND ANR.

DATE OF JUDGMENT22/02/1991

BENCH: SAIKIA, K.N. (J) BENCH: SAIKIA, K.N. (J) PUNCHHI, M.M.

CITATION:  1991 SCR  (1) 699        1991 SCC  (2) 236  JT 1991 (2)    75        1991 SCALE  (1)313

ACT:      U.P.  Zamindari Abolition and Land Reforms  Act,  1950- Scope and object of.      U.P.  Zamindari Abolition and Land Reforms  Act,  1950- Section 3(8a)-Definition of ’fragment’-Addition-Purpose of.      U.P.  Zamindari Abolition and Land Reforms  Act,  1950- Sections 168-A, 167-Object, scope and application of-Sale of fragments of a fragment to non-tenure holders-Whether hit by the provisions.

HEADNOTE:      The  respondent  No.  1  sued  the  second   respondent (defendant  No. 1) and the appellants (defendant Nos. 2  and 3)  for  specific performance of a contract  whereunder  the second respondent had agreed to sell his lands to the  first respondent  for Rs. 5,000 out of which Rs.4,000  were  paid, and  the  balance  Rs.1,000 was to be paid  within  5  years whereafter the second respondent was to execute a sale  deed in favour of the first respondent.      The  Munsif  decreed  the suit  only  for  recovery  of Rs,4,850 plus pendente lite and future interest on  Rs.4,000 and  this  order  was  confirmed  by  the  Civil  Judge   by dismissing the appeal of respondent No.1.      A  second  appeal was preferred to the  High  Court  by respondent  N. 1 contending that the transfers in favour  of the  appellants,  by  respondent No. 2 were  void  being  in contravention  of  Section  168-A  of  the  U.P.   Zamindari Abolition  and  Land  Reforms  Act,  1950.   The  appellants contested  the appeal contending that for a  transfer  being hit  by Section 168-A of the Act should be in respect  of  a specific piece of land and not a share in a holding and that the transfers were of a portion of the shares of  respondent No. 1 in the disputed plot.      The High Court allowed the appeal holding that the  two transfers made were clearly hit by the provisions of Section 168-A(2)  of the Act and that the benefit of Section  43  of the Transfer of property Act could not be availed of by  the appellants as the sale deeds were void in the eye of law.                                                        700      The  appellant in their appeal to this Court  contended that the sale made by respondent No. 2 to the 2nd  appellant being hit by the provisions of Section 168-A of the Act, the

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subject matter of transfer got vested in the Government  and the interest of respondent No. 2 in that part of the holding stood extinguished on the date of transfer and that the sale being  void,  he was left only with the  subject  matter  of transfer,  and that the respondent No. 2 having  transferred that whole portion to the first appellant by sale deed  such transfer  being  a transfer of the whole area  it  would  be covered by the proviso under Section 168-A and as such,  the sale would not be hit by the provisions of Section 168-A.      The  first respondent contended that as the sale  deeds in  favour of the two appellants have been held to be  void, the High Court rightly decreed the suit; that he having been in  possession  of  the land  and  the  second  respondent’s fragmented  sales having been found to be void, even if  the land would vest in the State, the first respondent would not be  divested  automatically  and  the  State  has  to   seek possession in accordance with the law.      On  the question as to what would be the effect of  the two  fragmented sales in favour of the  appellants,  setting aside the order of the High Court and remanding the  matter, this Court,      HELD: 1. The U.P. Zamindari Abolition and Land  Reforms Act was passed as it was considered expedient to provide for the  abolition  of  the  Zamindari  system  which   involved intermediaries between the tiller of the soil and the  State in  Uttar Pradesh and for the acquisition of  their  rights, title  and interest and to reform the law relating  to  land tenure consequent upon such abolition and acquisition and to make provision for other matters connected therewith. [705E- F]      2.  The  original  Act did not  define  fragment.   The definition of ’fragment’ was added by Section 2 of the  U.P. Act  XVIII of 1956 with a view to prevent fragmentation  and promote   consolidation  of  holdings  in  order  to   avoid uneconomic units. [705F-G]      3.  The object of the section 168-A(1) was  to  prevent fragmentation  of  land situated in a conolidated  area  and transfers  that  would result in  fragmentation  or  further fragmentation  shall be void and to such transfers,  Section 167  will  mutatis mutandis be applicable, when  a  fragment situated in a consolidated area is transferred.  If transfer of  a fragment is made in favour of tenure-holder who has  a plot  contiguous to the fragment, the purpose of law is  not defeated inasmuch as it will be                                                        701 consolidated  with  the contiguous plot of  the  transferee. When  the  land held by a person in a consolidated  area  is already  a  fragment then as  was provided previous  to  the amendment  in  1961  the  whole of the  plot  to  which  the fragment pertained was to be transferred. [708F-709A]      4.   After   the   amendment,   the   invalidity    and applicability of Section 167 is limited to a case where  the transfer  is not in favour of any such tenure-holder and  to the  whole  or so much of the plot in which the  person  has bhumidhar  rights  which  pertains to  fragment  is  thereby transferred.  If the transferor has bhumidhari rights on the whole  of the fragment the whole has to be transferred.   If the person has bhumidhari rights only in a part of the  plot that  part  on  which  he  has  bhumidhari  rights  can   be transferred.    The  part  on  which  the  person  has   not bhumidhari  rights  is  not covered by  the  provisions  not because  that would not result in further fragmentation  but because  he had transferable bhumidhari rights only on  that portion and not on the other portion. [709A-C]      5.  The  substitution  of  the  words  "bhumidhar  with

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transferable rights" for the word "bhumidhar" would not make any  difference when the bhumidhar had  transferable  rights but  would  make a difference where the bhumidhar  had  also lands with non-transferable rights. [710C-D]      6.   Under  the amended provisions the  interest  of  a bhumidhar with transferable rights in his holding or in part thereof  shall  be  extinguished when the  holding  or  part thereof  with bhumidhar rights has been transferred  or  let out in contravention of the provisions of the Act.  In other words,  when he had bhumidhar rights on the  entire  holding and  the same is transferred or let out in contravention  of the   provisions   of  the  Act  his   interest   shall   be extinguished.   If he had bhumidhari rights only on  a  part thereof   and  it  has  been  transferred  or  let  out   in contravention  of the provisions of the Act his interest  in bhumidhari  rights in that part shall be extinguished.   The reason  behind  the provision to make fragmentation  is  the need to prevent further fragmentation if the bhumidhar  with his bhumidhari rights over a fragment tries to transfer  the fragment,  his  right  over the  fragment  is  extinguished. [710D-E]      7.   In the instant case, the bhumidhar respondent  No. 2’s land measuring 10 bighas, 12 biswas and 10 biswansis was a  fragment.  He entered into an agreement to sell the  land on  5.4.1966 and the first respondent on payment of  advance of  Rs.4,000 is stated to have had possession of  the  land. That sale would attract the provisions of Section                                                        702 168-A,  if  it resulted in transfer of  the  fragment.   The sales  to  the  appellant No. 1 was dated  2.9.1966  and  to appellant No. 2 was dated 21.12.1966.  These two sales would be  convered by the old provisions of sections 166 and  167, which  section did not deal with the case of  bhumidhar  but only  by  sirdar  or  asami.  But  section  168-A  would  be attracted  and the provisions of Section 167  would  mutatis mutandis be applicable. [710G-711B]      8. The High Court did not examine the facts of the case in  light of the laws prevailing at the  time.   Festination justiate  est noverea informateeni.  Hasty justice is  step- mother of misfortune.  Injustuim est nisitota lege inspecta, de   una  aliqua  ejus  particula  proposita  judicare   vel respondere.   It  is  unjust to decide  or  respond  to  any particular part of a law without examining the whole of  the law. [711B, 711D-E]

JUDGMENT:      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2597  of 1983.      From  the  Judgment and Order dated the  27th  October, 1980 of the Allahabad High Court in Second Appeal No. 567 of 1973.      K.V.  Vishwanathan, S.R. Setia, K.V.  Venkataraman  and C.S. Vaidyanathan for the Appellants.      Yogeshwar  Prasad,  P.K. Bajaj, Ms. Rachna  Gupta,  Ms. Rani Chhabra for the Respondents.      The Judgment of the Court was delivered by      K.N. SAIKIA, J. This appeal is from the Judgment of the Allahabad  High Court dated 27.10.1980 in Second Appeal  No. 567  of 1973 allowing the appeal and decreeing the  suit  of the  first respondent for specific performance  of  contract dated 5.4.1966, wherein it was stipulated that the defendant No.  1  (second respondent) had executed a  fictitious  sale deed dated 2.9.1966 for Rs.1,000 in favour of defendant  No.

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2 Kalawati, in respect of half of the suit chak and  another sale  deed  dated  21.12.1966  for  Rs.2,000  in  favour  of defendant No.3 Mithilesh Kumari.  Accordingly the  plaintiff (first respondent) prayed for directing the defendants 2 & 3 (appellants  herein)  to execute the required sale  deed  in case it was not possible for the court to get it executed by defendant No. 1.      The  first  respondent Feteh Bahadur  sued  the  second respondent                                                        703 Jang Bahadur and the appellants in O.S. No. 278 of 1970, for specific performance of his contract whereunder  the  second respondent Jang Bahadur had agreed to sell his chak No.  249 admeasuring   10 bighas, 12 biswas and 10 biswansis  to  the first  respondent of Rs. 5,000 out of which Rs.  4,000  were paid  and  the balance Rs. 1,000 to be paid within  5  years whereafter  second respondent Jang Bahadur was to execute  a sale  deed in favour of the first respondent Fateh  Bahadur. The  Court  of Munsif, Fatehpur decrced the  suit  only  for recovery of Rs. 4,850 plus pendent lite and future  interest on  Rs.  4,000. Fateh Bahadur’s apeal therefrom  having been dismissed by the Civil Judge he  preferred second appeal No. 567  of 1973 in the High Court of Judicature  at  Allahabad, contending that the transfers in favour of defendant NOs.  2 &  3,  the  appellants  herein,  by  Jang  Bahadur  were  in contravention of the provision of Section 168-A of the  U.P. Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act No. 1  of 1951) hereinafter referred to as ‘the Act’,  and  thus were  void and that the view taken  by the lower court  that the  title  of  Jang  Bahadur came  to  an  end  since  void transfers  were  made in favour of appellants  Kalawati  and Mithlesh  Kumari, and thus, Jang Bahadur was no  longer  the holder of any title which could be conveyed to Fateh Bahadur was  erroneous in law. Reliance was placed on a decision  of the  High  Court  in Parmanand v. Board  of  Revenue,  U.P., Allahabad reported in 1966 ALJ 963. The defendants 2 & 3 who are appellants herein, contended that the two transfers made by  Jang  Bahadur  in  their favour  were  not  hit  by  the provision  of  Section  168-A of the  Act  inasmuch  as  the transfers  were of a portion of  the shares of Jang  Bahadur in  the  plot in dispute. It was urged that for  a  transfer being hit by provision of Section 168-A of the  Act the same should  be in respect of a specific piece of land and not  a share in a holding. Reliance was placed on a decision of the same High Court in Bibhuti v. Kashi Ram, 1977 AWC 491.      It was not disputed that the  area of land  transferred under  the two sale deeds in favour of  appellants  Kalawati and Mithlesh Kumari amounted to fragments under the Act. The High Court considered the question as to  whether a transfer which had been made not of the entire share of a holder in a holding but of a fragment would be hit by the provisions  of Section  168-A  of the Act and took the view  that  the  two transfers  made  in favour of Kalawati and  Mithlesh  Kumari were  clearly hit by the provisions of Section 168-A of  the Act  in  view of the provisions of sub-clause  (2)  of  that section and that the benefit of Kalawati and Mithlesh Kumari only  if  the sale deeds executed in their favour  could  be looked into and as those sale deeds were void in the                                                        704 eye of law it would be presumed as if no legal transfer took place  in their favour and there being no legal transfer  no question  of applicability of Section 43 of the Transfer  of Property  Act arose. As Jang Bahadur executed the  agreement of sale in favour of Fateh Bahadur and as the sale deeds  in favour  of  Kalawati and Mithlesh Kumar  were held  to  have

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been  void, Fateh Bahadur, according to the High Court,  was entitled  to  a  decree  of  specific  performance   against Kalawati and Mithlesh Kumari on payment of Rs. 1,000  within a period 2 months from the date of receipt of the record  in the  trial court failing which the court would  execute  the sale  deed  in  favour  of the  plaintiff.  The  appeal  was accordingly allowed and the suit decreed as above.      Mr.  K.V.  Vishwanathan, the learned  counsel  for  the appellants submits that the sale made by Jang Bahadur to the 2nd  appellant  Kalawati  on  2.9.1966  being  hit  by   the provisions of Section 168-A of the Act the subject matter of transfer i.e. 5 bighas, 6 biswas and 5 biswansis of Plot No. 249  in village Kichakpur got vested in the  Government  and the  interest  of Jang Bahadur in that part of  the  holding stood  extinguished on the date of transfer  i.e.  2.9.1966; that the sale made to Kalawati being void, Jang Bahadur  was left  only with 5 bighas, 6 biswas and 5 biswansis  in  Plot No.   249   of  village  Kichakpur.  Jang   Bahadur   having transferred  that  whole  or entire  portion  to  the  first appellants  Mithlesh  Kumari by sale deed  dated  21.12.1966 such  transfer  being a transfer of the whole  area  of  the Bhumidhar  it would be covered by the proviso under  Section 168-A  and  as  such,  the sale would  not  be  hit  by  the provisions of Section 168-; that Sections 166, 167,168, 168- A  and 189 (aa) form a scheme and if the sale is hit by  the provision of 168-A, the result would be that on the date  of sale,  the interest of the vendor in the subject  matter  of sale would  stand extinguished under Section  189  (aa)  and hence 189 (aa) is the provision which extinguishes the right of  the  vendor  in  that  part  of  the  holding  which  he contracted  to sell in violation of Section 168-A  and  that the  interest  of the transferee  would  stand  extinguished under  Sections  167  &  168 when  the  Gaon  Sabha  or  the landholder   ejects  the  transferee  from   the   premises. According  to counsel, harmoniously construing Sections  168 and  189(aa),  it would be amply clear  that  while  189(aa) extinguishes the interest of the vendor on that part of  the property  which he contracted to sell in violation of  168-A on  the  date  of  transfer  itself,  the  interest  of  the transferee would be extinguished on ejectment from the  suit premises;  and  the  High  Court  erred  in  directing   the appellants  to specifically execute the sale deed in  favour of the first respondent.      Ms.  Rachna  Gupta, the learned counsel for  the  first respondent.                                                        705 submits  that  as  the  sale deeds  in  favour  of  the  two appellants have been held to be void the High Court  rightly decreed  the suit for specific performance against  them  on payment  of the balance or Rs.1,000 and that he having  been in  possession  of  the land  and  the  second  respondent’s fragmented  sales having been found to be void, even if  the land would vest in the State, the first respondent would not be  divested  automatically  and  the  State  has  to   seek possession in accordance with the law.      The only question that falls for determination is  what would be the effect of the two fragmented sales in favour of the appellants.  In other words, whether as a result of  the two  sales the entire holding of the bhumidhar Jang  Bahadur would  vest in the State or only the half in the first  sale would  vest  in  the  State and  the  remaining  half  would thereafter constitute the whole in the hand of the bhumidhar Jang  Bahadur and the second sale being of the whole of  his remnant holding would be valid so as to convey and  transfer right to the vendee Mithlesh Kumari.

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    There  is  no dispute that the land of  10  bighas,  12 biswas and 10 biswansis was itself a fragment as defined  in clause  8(a) of Section 3 of the Act being less  than  3.125 acres.  There is also no dispute that the suit land is in  a consolidated  area and that the appellants were not  tenure- holders.   It would, therefore, follow that the  two  halves sold to the appellants were fragments of a fragment.      The  Act was passed as it was considered  expedient  to provide  for  the abolition of the  Zamindari  system  which involved  intermediaries between the tiller of the soil  and the  State in Uttar Pradesh and for the acquistion of  their rights, title and interest and to reform the law relating to land tenure consequent upon such abolition and   acquisition and to make provision for other matters connected therewith. The original Act did not define fragment.  The definition of ‘fragment’  was added by Section 2 of the U.P. Act XVIII  of 1956  with  a  view to  prevent  fragmentation  and  promote consolidation  of  holdings  in order  to  avoid  uneconomic units.  Sections 152 to 175 of the Act dealt with  transfer. Section 152 provided:          "The  interest  of  a  bhumidhar  with  tranferable          rights shall subject to the conditions  hereinafter          contained, be transferable.          (2)  Except otherwise expressly permitted  by  this          Act or                                                        706          any   other  law for the time being in  force,  the          interest  of  a  bhumidhar  with   non-transferable          rights shall not be transferable.           (3)  A  bhumidhar referred to in  sub-section  (2)          may,  in such circumstances as may  be  prescribed,          mortgage,  without possessions his interest in  his          holding,  as  security for a loan  taken  from  the          State  Government  by  way of  taqavi,  or  from  a          cooperative  society  or  from the  State  Bank  of          India, or from any other bank, which is a scheduled          bank within the meaning of clause (e) of Section  2          of the Reserve Bank of India Act, 1934, or from the          Uttar  Pradesh State,  Agro-Industrial  Corporation          Limited, and may also transfer by way of gift,  the          interest  in his holding, except the  part  thereof          which  has  been  so  mortgaged,  to  a  recognised          educational  institution for any purpose  connected          with instructions in agriculture, horticulture  and          animal husbandry."      The  interests of sirdar or asami were  originally  not transferable  as  Section  153 said:  "Except  as  expressly permitted  by this Act, the interest of a sirdar  and  asami shall not be transferable."  Sections 154 to 170 dealt  with transfer  of  land  by bhumidhar.   Section  166  originally provided that any transfer made by or an behalf of a  sirdar or asami in contravention of the provisions of that  chapter was to be void.  Section 166 has undergone amendments.   The section  was substituted by the present section by U.P.  Act No.  XX  of  1982 with effect from  3.6.1981.   The  present section  says: "Every transfer made in contravention of  the provisions  of  this  Act  shall be  void."   What  was  the position in 1966 on the dates of the instant sales has to be known  and correctly applied.  Section 167 earlier  provided for  the  consequences of void transfers  in  the  following language:          167.  (1)  Where  a sirdar or asami  has  made  any          transfer in contravention of the provision of  this          Act,  the transferee and every person who may  have          thus  obtained possession of the whole or  part  of

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        the  holding  shall be liable to ejectment  on  the          suit  of the Gaon Sabha or the landholder,  as  the          case may be.          (2)  A decree for ejectment under  sub-section  (1)          may  direct  the ejectment of the sirdar  or  asami          from the whole or part of the holding as the  Court          may, having regard to                                                        707          the circumstances of the case, direct." This section was also substituted by the same Act No. XX  of 1982 with effect from 3.6.1981.  Section 167 now says: "167.(1)  the following consequences shall ensue in  respect of  every transfer which is void by virtue of  Section  166, namely-           (a)  the  subject-matter of  transfer  shall  with          effect from the date of transfer, be deemed to have          vested  in the      State Government free from  all          encumbrances;           (b)  the  trees, crops and wells existing  on  the          land  on  the date of transfer shall,  with  effect          from       the said date, be deemed to have  vested          in the State Government free from all encumbrances;          (c)   the  transferee  may  remove  other   movable          property or the materials of any immovable property          existing  on  such  land on the  date  of  transfer          within      such time as may be prescribed.          (2) Where any land or other property has vested in          the  State  Government under  sub-section  (1),  it          shall be      lawful for the Collector to take over          possession  over      such land or  other  property          and  to direct that any      person occupying  such          land  or property be evicted       therefrom.   For          the purposes of taking over such      possession or          evicting    such   unauthorised   occupants,    the          Collector may use or cause to be used such force as          may      be necessary."      The position before the amendment has been shown to  us to  enable us to apply the relevant law to the facts of  the case.    Section  168  which  dealt  with  consequences   of ejectment under Section 167 has been omitted by U.P. Act No. VIII  of  1977  with effect from 28.1.1977.   What  was  the provision in 1966 is not clear to us.  We are told that  the section  stood as follows in 1966: "S. 168.-Consequences  of ejectment  under section 167.  All the rights and  interests of  the  sirdar  and asami upon ejectment in  a  suit  under section  167  in  the holding (or part thereof)  or  in  any improvement  made  therein or to get compensation  for  such improvements  shall be extinguished."  But we have not  been shown the enactment.                                                        708      Section 168-A was added by Section 9 of U.P. Act  XVIII of  1956,  subject  to the saving contained  in  Section  23 thereof.  This section now says:        "168-A.   Transfer of fragments.-Notwithstanding  the        provisions of any law for the time being in force, no        person  shall  transfer  whether  by  sale,  gift  or        exchange any fragment situate in a consolidated  area        except  where  the transfer is in favour  of  tenure-        holder  who has a plot contiguous to the fragment  or        where  the  transfer  is not in favour  of  any  such        tenure-holder  the  whole or so much of the  plot  in        which person has bhumidhari rights, which pertains to        the fragment is thereby transferred.           (2)  The  transfer  of any land  contrary  to  the        provisions of sub-section (1) shall be void.

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         (3)  When  a bhumidhar has made  any  transfer  in        contravention  of the provisions of  sub-section  (1)        the provisions of Section 167 shall mutatis  mutandis        apply." Section  168-A has undergone amendment by Section 2 of  U.P. Act XXVIII of 1961 when for the words "whole of the plot  to which  the  fragment pertains is  hereby  transferred",  the present words "the whole or so much of the plot in which the person has bhumidhari rights which pertains to the  fragment is  hereby  transferrd" were  substituted.   This  amendment would not affect the instant case.  Some words between ‘167’ and  ‘shall’  were omitted by U.P. Act XIII  of  1977,  with effect  from  28.1.1977.  It may be necessary to  know  what those were.  Sub-section (1) of Section 168-A begins with  a non-obstante  clause and it over-rides the provisions of any law     for  the  time being in force.   The  expession  ‘no person’  would  include the bhumidhar.  The  object  of  the section  is to prevent fragmentation of land situated  in  a consolidated  area  and  transfers  that  would  result   in fragmentation or further fragmentation shall be void and  to such   transfers  Section  167  will  mutatis  mutandis   be applicable.   This  section  comes into  play  only  when  a fragment situated in a consolidated area is transferred.  If transfer  of a fragment is made in favour  of  tenure-holder who  has a plot contiguous to the fragment, the  purpose  of law is not defeatd inasmuch as it will be consolidated  with the  contiguous plot of the transferee.  When the land  held by  a  person in a consolidated area is already  a  fragment then  as was provided previous to the amendment in 1961  the whole of the plot to which the fragment pertained was to be                                                        709 transferred.   After  the  amendment,  the  invalidity   and applicability of Section 167 is limited to a case where  the transfer  is not in favour of any such tenure-holder and  to the whole  or so much of the plot in which  the  person  has bhumidhari rights which pertains to the fragment is  thereby transferred.  If the transferor had bhumidhari rights on the whole  of the fragment the whole has to be transferred.   If the person has bhumidhari rights only in a part of the  plot that  part  on  which  he  has  bhumidhari  rights  can   be transferred.    The  part  on  which  the  person  has   not bhumidhari  rights  is  not covered by  the  provisions  not because  that would not result in further fragmentation  but because  he had transferable bhumidhari rights only on  that portion  and  not on the other portion.  There is  no  doubt that under sub-section (2) transfer of any land countrary to the  provisions of sub-section (1) shall be void  and  under sub-section (3) the provisions of section 167 shall  mutatis mutandis apply.      Section 189 deals with  extinction of the interest of a bhumidhar  with  transferable rights and Section  190  deals with  extinction  of the interest of a bhumidhar  with  non- transferable rights.  Section 189 earlier provided:        "189.  The interest of a bhumidhar in his holding  or        any part thereof shall be extinguished-           (a)  when  he  died  intestate  leaving  no   heir        entitled to inherit in accordance with the provisions        of this Act;           (b)  when the land compromised in the holding  has        been  acquired  under any law for the time  being  in        force relating to the acquisition of land, or           (c)  when he has been deprived of  possession  and        his   right  to  recover  possession  is  barred   by        limitation" The   words  "bhumidhar  with  transferable   rights"   were

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substituted in the first sentence by U.P. Act XVIII of  1977 with  effect  from  28.1.1977.  Clause  (aa)  was  added  by Section  50 of U.P. Act XXXVII of 1958, so that the  amended section now reads:        "189.  Extinction of the interest of a bhumidhar with        transferable rights.-The interest of a bhumidhar with        transferable  rights  in  his  holding  or  any  part        thereof shall be extinguished-                                                        710           (a)  when  he  dies  intestate  leaving  no   heir        entitled to inherit in accordance with the provisions        of this Act;           (aa)  when  the holding or part thereof  has  been        transferred  or  let  out  in  contravention  of  the        provisions of this Act;           (b)  when  the land comprised in the  holding  has        been  acquired  under any law for the time  being  in        force relating to the acquisition of land; or           (c)  when he has been deprived of  possession  and        this  right  to  recover  possession  is  barred   by        limitation." The  substitution of the words "bhumidhar with  transferable right"   for  the  word  "bhumidhar"  would  not  make   any difference  when the bhumidhar had transferable  rights  but would  make a difference where the bhumidhar has also  lands with  non-transferable  rights.   Thus,  under  the  amended provisions  the  interest of a bhumidhar  with  transferable rights   in  his  holding  or  in  part  thereof  shall   be extinguished   when  the  holding  or  part   thereof   with bhumidhari  rights  has  been  transferred  or  let  out  in contravention of the provisions of the Act.  In other  words when he had bhumidhari rights on the entire holding and  the same  is  transferred  or let out in  contravention  of  the provisions  of the Act his interest shall  be  extinguished. If he had bhumidhari right only on a part thereof and it has been  transferred  or  let  out  in  contravention  of   the provisions  of the Act his interest in bhumidhari  right  in that  part  shall be extinguished.  The  reason  behind  the provisions  to  make fragmentation is the  need  to  prevent further  fragmentation if the bhumidhar with his  bhumidhari rights  over a fragment tries to transfer the fragment,  his right  over the fragment is extinguished.  Will the same  by the result if instead of transferring the entire fragment he transfers a fragment of a fragment?  If only a fragment of a fragment  is  so  transferred would the  whole  fragment  be vested in State?      Applying  the law to the facts of the case in  hand  we find that the bhumidhar Jang Bahadur’s land  admeasuring  10 bighas,  12 biswas and 10 biswansis was itself admittedly  a fragment.   Jang Bahadur entered into an  agreement to  sell the land on 5.4.1966 and the first respondent Fateh  Bahadur on  payment  of advance of Rs. 4000  is stated to  have  had possession  of  the  land.   That  sale  would  attract  the provisions  of Section 168-A if it resulted in  transfer  of the  fragment.   The  sales  to  the  appellants.   Kalawati defendant No. 2 was dated 2.9.1966 and to Mith-                                                        711 lesh Kumari defendant No. 3 was dated 21.12.1966.  These two sales would be covered by the old provisions of sections 166 and  167,  which  sections did not deal  with  the  case  of bhumidhar  but only by sirdar or asami.  But  Section  168-A would  be attracted and the provisions of Section 167  would mutatis mutandis be applicable.      The High Court did not examine the facts of the case in light  of the laws prevailing at the time of the sales.   If

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the sales were in contravention of the provisions of law  so as to entail invalidity of the sale and vesting of the  land sold  in  the  State, the question whether in  such  a  case specific  performance of the contract would be justified  or not would also be germane.  While holding both the sales  to the  appellants  to have been void, the High Court  did  not take into consideration the exception as to transfer of "the whole  or  so  much  of the plot in  which  the  person  has bhumidhari  rights."  The High Court also failed  to  notice and  apply  clause (aa) of Section 189 which  was  added  by Section 50 of U.P. Act XXXVII of 1958 and was applicable  to the case.      Festinatio  justitiae est noverea informateeni.   (Hob. 97) Hasty justice is stepmother of misfortune.  Injustum est nisi   tota  lege  inspecta, de una  aliqua  ejus  particula proposita  judicare vel respondere.  It is unjust to  decide or respond to any particular part of a law without examining the  whole of the law.  But we are in time  constraint.   By consensus  with the learned counsel for the parties, we  set aside  the impugned order and remand this case to  the  High Court for disposal in accordance with the law applicable  to the facts of the case expeditiously.  The appeal is disposed of  accordingly.   We leave the parties to  bear  their  own costs. V.P.R.                                   Appeal disposed of.                                                        712